Trust Matters
Indian Country Today
By: Suzan Shown Harjo
Columnist
November 20, 2001
The United States has a trust responsibility to Native American nations and people. Federal courts describe this fiduciary obligation as a duty of care of the highest responsibility and trust, tracing it back to the earliest days of the republic.
“The General Government will never consent to your being defrauded, but it will protect you in all your just rights.” That’s how President George Washington explained the concept when he met with the Seneca Nation in 1790 to discuss the first U.S. Indian trust law.
Not all federal bureaucrats fully understand the trust, but many do their best to live up to its high standards and basic decency.
There are others who dislike the trust, unless they can control Indians and exploit Indian property in its name. They try to wiggle out of the trust when it comes to exercising it to benefit the intended beneficiaries, Native Peoples, and they try to whittle down the trust when it starts costing money.
History instructs that all U.S. administrations have circumvented, limited or ignored their trust obligations, or have tried their best to do so. This one is no different.
The first thing that incoming Interior secretaries and Indian bureau heads do is cross their hearts and pledge to Congress that they will uphold the trust and take care of Indians, a promise open to disparate interpretations.
The second thing they do is announce plans to shake up the BIA, implying that it is solely to blame for the failures of the Trustee United States. This paves the way for Interior’s other agencies and constituencies to snack around on Indian property and rights.
The reorganizations become the excuse for unfinished jobs, inadequate protection and trust dereliction, should anyone call the question. They usually take effect in the fourth year and the process begins anew after that, even if the administration has a second term. The cycle is predictable and has completed itself in most administrations since the BIA was placed in Interior almost 150 years ago.
So, here we go again.
Interior Secretary Gale A. Norton has just announced – surprise, surprise – that her department is reorganizing the BIA. Under this plan, Indian “trust assets” would be taken from the BIA and placed in a new Indian trust assets management bureau.
Like many federal officials before her, she is trying to make a trust category of only tangible resources. If you can walk on it, drink it, mine it, lease it, sell it or spend it, it is a trust asset.
Everything else – people, education, social services, child welfare, elder care, suicide and substance abuse prevention, law enforcement – is “trust-like” (or “trust-lite,” as they say around the water cooler). The goal is to remove the people from the trust and eventually slough them off, keeping only the things for the trust corpus.
Secretary Norton did not advise or consult with tribal governments about the plan, even though she is required to do so by the Indian reorganization act and a Nov. 6, 2000 executive order. Maybe Indians slipped her mind, even though it was the middle of National American Indian Heritage Month and the week before Thanksgiving, a time when most people tend to remember us.
Perhaps she thought everyone would be too busy — what with giving money and workers to the 9-11 relief and security effort, serving in the war against terrorism and handling the ongoing emergencies in Indian country.
She also failed to consult with congressional leaders who oversee Indian affairs, notifying the Senate Indian committee chair and vice-chair of the plan the day before it was filed and providing only an organizational chart of the new bureau. Others in the House were taken by surprise. It is a breech of protocol that could result in oversight hearings and directives to reverse course.
Secretary Norton made the reorganization pronouncement in a Nov. 15 notice to the federal district court in the ongoing trust funds case. That case focuses on more than a century of missing and unaccounted for money, dislocated documents and dealings ranging from the incompetent to the dishonest. It was filed in 1996 as a class action suit by five Native Americans on behalf of some 500,000 individual Indian money account holders.
Judge Royce Lamberth presides over the trust funds case and held the Clinton administration’s Interior and Treasury secretaries and the Indian affairs assistant secretary in contempt of court for not complying with orders to produce documents. He recently signaled that he is on the brink of finding this Interior secretary in contempt, too.
Judge Lamberth also said he might remove the trust funds from Interior’s political leadership and place it in a management receivership until the system is fixed. He gave Interior and the Justice lawyers until Nov. 16 to say why he should not cite the secretary and name a receiver. The judge will hear from both sides on Nov. 30.
What does the Norton reorganization plan have to do with the trust funds case? Very little.
The plan does not address the concerns of the court about the lack of a system for managing the individual trust funds. It takes all the trust management functions from the BIA, but Interior’s land and minerals agencies and the special trustee’s office would keep theirs, defeating the goal of a comprehensive system and compounding the management problems.
The Norton plan goes far beyond the individual Indian monies that are the subject of the accounting lawsuit to include all tribal and individual trust properties. The plan is a transparent effort to co-opt the judge and gain a court order sanctioning the political reorganization plan.
Interior and Justice also told the court that it does not have the constitutional authority to appoint a receiver for the individual trust funds. That one is enough to make the judge laugh off his turkey dinner.
In the meantime, federal politicos and trust bureau job seekers are fanning out across Indian country, spreading the word that the trust funds case made Norton do it and she is simply trying to save all trust assets from going into receivership.
Actually, the case is the only reason that anyone is paying attention to the trust funds problem and only individual monies, not tribal funds, may go under a receiver. A receivership would be narrow, specific and temporary. The Norton trust bureau would be sweeping, vague and permanent.
Tribal leaders are irate and the issue is likely to dominate the upcoming convention of the National Congress of American Indians, Nov. 25-30 in Spokane, Washington. Interior will trot out its Indian affairs assistant secretary, Neal McCaleb (Chickasaw), who has fronted for failed assaults on the trust in the past.
Former BIA head Ross O. Swimmer (Cherokee) is campaigning to run the new trust assets bureau, but tribal leaders are not rushing to endorse him. During the Reagan administration, he tried to remove education from the trust and turn it over to the states. He also had his chance to fix the trust funds problem during his tenure, but failed to improve it or even take it seriously.
It is time for Interior to stop tinkering with the trust and to start living up to it.
It is time “to work with tribal governments on a sovereign to sovereign basis to provide Native Americans with new economic and educational opportunities.” That’s what President George W. Bush said his administration would continue to do, as he proclaimed Native heritage month on Nov. 12, three days before Secretary Norton pulled the sneak attack on the trust.
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